Faunce v. Covello

• Court: District Court, S.D. California
• Decided: September 14, 2022
• Docket: 3:21-cv-00363
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID W. FAUNCE, Case No.: 21-CV-363-MMA-WVG

12 Plaintiff, ORDER ON PLAINTIFF’S 13 v. REQUEST FOR DEFAULT OF DEFENDANTS 14 J. MARTINEZ, et al., 15 Defendants. 16 17 18 19 On June 27, 2022, presiding District Judge Michael M. Anello issued an Order on 20 Defendants’ Motion to Dismiss that, in relevant part, directed Defendants Allison and 21 Ferrel to respond to Plaintiff’s First Amended Complaint no later than 14 days after receipt 22 of service. (Doc. No. 61, 43:6-10.) On July 6, 2022, the Marshal effected service on 23 Defendants Allison and Ferrel. (Doc. Nos. 68, 69.) On July 15, 2022, Defendants Allison 24 and Ferrel submitted their waivers of service to the Court Clerk. (Doc. Nos. 66, 78, 25 Declaration of Corinna Arbiter (“Arbiter Decl.”), ¶ 6.) On July 18, 2022, the Court Clerk 26 filed Defendants Allison and Ferrel’s waivers of service. (Doc. Nos, 68, 69.) On August 1, 27 2022, Defendants Allison and Ferrel filed their Answer to the operative February 9, 2022 28 First Amended Complaint (“FAC”). (Doc. No. 74.) 1 On July 25, 2022, Plaintiff filed a Motion to Vacate Defendants’ Waiver of Service. 2 (Doc. No. 71.) In doing so, Plaintiff moved the Court to “vacate[] and quash[] the spurious 3 waiver of service by the Defendants, and issue an order directing the U.S. Marshal’s service 4 to serve Plaintiff’s amended complaint to Defendants K. Allison and H. Ferrel as ordered 5 by this Court on 6/27/22.” (Doc. No. 71, 1.) The Court denied Plaintiff’s request on July 6 29, 2022 and made clear “Defendants Allison and Ferrel’s waiver of service of Plaintiff’s 7 Amended Complaint has no bearing on their obligation to timely respond to the Amended 8 Complaint in light of Judge Anello’s June 27, 2022 Order.” (Doc. No 73, 1:28-2:3.) Despite 9 the Court’s July 29, 2022 Order and Defendants Allison and Ferrel August 1, 2022 Answer, 10 Plaintiff filed a Request to Enter Default against Defendants (“Request”), which is now 11 pending before the Court. (Doc. No. 77.) 12 Rule 55 of the Federal Rules of Civil Procedure provides: “When a party against 13 whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, 14 and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.” 15 Fed. R. Civ. P. 55. Default judgments are generally disfavored in the Ninth Circuit because 16 “cases should be decided upon their merits whenever reasonably possible.” Pena v. 17 Seguros La Comercial, S.A., 770 F.2d 811, 814 (9th Cir.1985). To that end, courts exercise 18 discretion in resolving requests for entry of default judgment and may consider factors such 19 as the possibility of prejudice to the plaintiff, the merits of plaintiff's substantive claim, and 20 the possibility of a dispute concerning material facts. Eitel v. McCool, 782 F.2d 1470, 1472 21 (9th Cir. 1986) (citing Moore's Federal Practice ¶ 55–05[2], at 55–24 to 55–26) (affirming 22 district court’s denial of motion for default judgment given that the defendant “had filed 23 an answer and counterclaim”). “The strong policy underlying the Federal Rules of Civil 24 Procedure favoring decisions on the merits” also informs courts’ analyses of requests for 25 entry of default judgment. Id. (citing Islamic Republic of Iran v. Boeing Co., 771 F.2d 26 1279, 1288 (9th Cir.1985).) 27 / / / 28 / / / 1 The Court DENIES Plaintiff's Request for Default of Defendants. Defendants have 2 ||generally appeared in this Action and filed answers to the operative FAC. Moreover, 3 ||Defendants Allison and Ferrel’s August 1, 2022-dated Answer poses no appreciable 4 || prejudice to Plaintiff. Defendants Allison and Ferrel elected to waive service consistent 5 || with Rule 4 of the Federal Rules of Civil Procedure. (Doc. Nos. 66.) To that end, the Court 6 || declined to strike Defendants’ waiver of service in its July 29, 2022 Order on Plaintiffs 7 Motion for to Vacate Defendants’ Waiver of Service. (Doc. No. 73.) Defendants Allison 8 Ferrel’s Answer to the FAC followed on August 1, 2022, which was 14 days after their 9 || waivers of service were filed to the docket. 10 In his Request, Plaintiff fails to explain how, if at all, he suffered prejudice when 11 Defendants Allison and Ferrel filed their Answer following an executed waiver of service 12 ||as opposed to directly filing an answer after Judge Anello’s June 27, 2022 Order issued. 13 ||(Doc. No. 61.) Plaintiff merely calls Defendants’ waiver of service a “sham,” and, from 14 || there, concludes the service of Defendants’ Answer was improper and thus merits entry of 15 default judgment. Not so. Plaintiffs conclusions are not supported under the facts or the 16 || law. Moreover, given the Ninth Circuit’s well-established precedent favoring resolution of 17 || actions on the merits and that the Parties dispute material facts particularly surrounding 18 || Plaintiff's retaliation-based claims, the Court declines to direct entry of default judgment 19 against Defendants in this matter. Plaintiff's Request is DENIED. 20 IT IS SO ORDERED. 21 || Dated: September 13, 2022 Se 22 | MS J Es 73 Hon. William V. Gallo United States Magistrate Judge 24 25 26 27 28